Almost every public and private high school has a code of conduct they require students to follow. Secondary schools also frequently require students participating in school-sponsored extracurricular activities to abide by additional agreements governing conduct and speech. These additional agreements frequently call upon participating students to serve as role models for others in the school; to always be polite, respectful, and show good sportsmanship; and not to disparage their team or their school. Depending on how these agreements are worded, they may even expressly condition students’ extracurricular participation on their willingness to waive certain speech rights. Are such agreements constitutional under the First Amendment when imposed on public school students? (The First Amendment does not apply to private schools). This resource takes a look at that question and discusses: (1) provisions in public school codes of conduct and extracurricular agreements that infringe on students’ free speech rights, (2) provisions that pose the risk of infringing speech rights depending on how they are interpreted and applied, and (3) provisions that strike an appropriate balance between a school’s interest in maintaining safe and efficiently-run programs with students’ interest in free speech and expression.

Legal Standards

It is true that “the line between constitutional and unconstitutional conditions is hardly clear, . . . and there are a wide range of extracurricular activities and student roles that may make conditions on speech more or less connected to the needs of the program.” B.L. v Mahanoy Area Sch. Dist., 964 F.3d 170, 192 (3d Cir. 2020) (cleaned up). However, in the public-school context it is essential to remember that “the free speech rights of minors are subject to ‘scrupulous protection,’ lest we ‘strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes’” Id. (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943)).

The United States Supreme Court tells us that public school officials may restrict student speech if the speech has caused, or is reasonably likely to cause, a material or substantial disruption of school functions or if it invades the rights of others. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). In Tinker, a group of students in the Des Moines Community School District planned to show their support for a truce in the Vietnam War by wearing black armbands to school throughout the holiday season. When district officials learned of this plan, they instituted a policy prohibiting students from wearing black arm bands on penalty of suspension. In striking down this policy, the Supreme Court held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Id. at 506. The Court further held that “prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.” Id. at 511. Thus, in order for public school officials to prohibit certain student speech or expression, they “must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Id. at 509.

Since Tinker, the Supreme Court has identified certain categories of student speech that may be constitutionally restricted by school officials without officials first having to show that a material or substantial disruption of school functions is likely to ensue. Those categories are: (1) indecent, lewd, or vulgar speech on school grounds; (2) speech during school-sponsored activities promoting illegal drug use; and (3) speech in school-sponsored forums (like school newspapers, plays, or graduation ceremonies) that may reasonably be perceived as bearing the school’s endorsement or imprimatur. See Mahanoy Area School District v. B. L., 141 S.Ct. 2038, 2045 (2021).  Teachers also have the authority, in the classroom, to limit student speech to topics that are relevant to the subject matter of the class, and to require that students address the teacher and one another with a reasonable degree of civility and decorum. However, outside of these exceptions, a public-school student has the First Amendment right to freely express themselves unless school officials can present evidence that the speech has caused, or is reasonably likely to cause, material or substantial disruption of school functions or invades the rights of others. Tinker, 393 U.S. at 508.

Off campus, school officials retain some limited authority to regulate student speech. See Mahanoy, 141 S. Ct. 2038. This includes prohibiting or punishing severe bullying or harassment by a student that targets someone else in the school community, or threats by a student aimed at teachers, administrators, or fellow students. Id. However, in most cases, off-campus student speech will generally fall within the zone of parental responsibility to regulate. Indeed, a school may even have an interest in protecting students’ off-campus expression of unpopular or disfavored views in order to facilitate the free marketplace of ideas that is central to a representative democracy. Id.

In Mahanoy Area School District v. B. L. (2021), the Supreme Court applied these principles governing school regulation of off-campus student speech. The Court struck down as unconstitutional a Pennsylvania school district’s decision to suspend a student from her junior varsity cheerleading team because she had made a profane post on her personal social media account that was critical of the school and of her cheer team. Student Brandi Levy had tried out, but failed to be selected for, the varsity cheerleading team at her high school. She also had not been assigned her preferred position on her softball team. While hanging out with a friend at a local convenience store on the weekend, Levy posted a picture of herself on her Snapchat account with the caption “Fuck school fuck softball fuck cheer fuck everything.” The photo was visible to about 250 people, including some of Levy’s fellow students and some members of her junior varsity cheerleading team. When the post was brought to the coaches’ attention, they determined that Levy had violated the conduct agreement she had signed when she joined the junior varsity cheerleading team. That agreement included the following rules:

  • Respect Rule: “Please have respect for your school, coaches, teachers, other cheerleaders and teams. Remember, you are representing your school when at games, fundraisers, and other events. Good sportsmanship will be enforced[;] this includes foul language and inappropriate gestures.”
  • Negative Information Rule: “There will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet.”

The coaches suspended Levy from the junior varsity cheerleading team for the rest of the school year because of her profane SnapChat post, and the Mahanoy Area School District backed this decision. Levy challenged the disciplinary action on the grounds that it violated her First Amendment right to freedom of speech. The United States Court of Appeals for the Third Circuit, which governs federal cases in several states including Pennsylvania, agreed. The Third Circuit also held that Levy’s SnapChat post did not fall clearly within the scope of the Respect Rule and Negative Information Rule she had agreed to follow when she joined the team and therefore these rules did not permit school officials to punish her. See B.L. v. Mahanoy Area School District, 964 F.3d 170, 192–93 (3d Cir. 2020) (“All rights, including free speech rights, can be waived. But waivers must be voluntary, knowing, . . . intelligent, . . . [and] established by ‘clear’ and ‘compelling’ evidence,’ and courts must indulge in every reasonable presumption against waiver.”) (Citations omitted and cleaned up).

When the case reached the Supreme Court, it did not address whether the Respect Rule and Negative Information Rule that Levy had signed were unconstitutional. But it agreed with the Third Circuit that the school could not punish Levy for her SnapChat post because it had not caused any actual or foreseeable substantial disruption of the school environment and therefore did not meet the Tinker standard for when school officials may punish or restrict student speech. See 141 S. Ct. at 2046. The fact that the Supreme Court found Levy’s social media post to be protected by the First Amendment suggests that the Respect Rule and Negative Information Rule, as applied by the school to Levy’s conduct, went too far in restricting her speech.

Review of Georgia High School Conduct & Extracurricular Agreements

In the Fall of 2021, the University of Georgia School of Law’s First Amendment Clinic (“the Clinic”) sent Open Records Requests (ORRs) to sixty public school districts in Georgia requesting copies of their conduct agreements for students participating in school-sponsored extracurricular activities. Seeking a representative sample, the Clinic sent ORRs to twenty school districts in each of the following three categories: districts in counties with over 500 people per square mile; districts in counties with between 100 and 500 people per square mile; and districts in counties with less than 100 people per square mile. Schools from twenty-four districts produced sufficiently responsive documents to conduct an analysis.[1]

From among these school districts, the Clinic identified restrictions on student speech falling into the following three categories:

  • First Tier Restrictions – Provisions that explicitly prohibit speech in a manner that does not comport with the Tinker standard for when schools may regulate student expression.
  • Second Tier Restrictions – Provisions that do not explicitly prohibit speech but are so broad or vague that they could readily be interpreted and applied in a manner that does not comply with the Tinker
  • Tinker-Compliant Restrictions – Provisions that restrict student speech only so far as it creates actual or likely material disruption of school functions, or falls into the few categories of speech schools can regulate without showing likelihood of disruption.

The analysis below further explains and discusses examples of each of these three categories of restriction.

Analysis

  • First Tier Restrictions

First Tier Restrictions explicitly prohibit student speech, both on-campus and off-campus, without first satisfying Tinker’s requirement that the speech create, or be reasonably likely to create, a material disruption of school functions. Examples of First Tier Restrictions include provisions such as: prohibiting “internet postings of any type that may have a negative impact on the sport, team, athletic department or high school,” “never post anything negative about a coach, team member, or opposing team,” “if it is not positive do not post it,” “do not use language [on social media] that could in any way be construed as offensive,” or “avoid topics that may be considered objectionable or inflammatory like religion or politics.”

To begin, prohibiting speech in advance of its occurring — as contrasted with punishing speech after it has occurred — is a form of restriction known as “prior restraint.” Courts view “prior restraint” as “the most serious and the least tolerable infringement on First Amendment rights.” Tory v. Cochran, 544 U.S. 734, 738 (2005) (internal citation and quotation omitted). Moreover, because school officials have diminished authority to regulate students’ off-campus speech, students’ free-expression rights will almost certainly outweigh the school’s interest in eliminating off-campus speech it deems undesirable. This is particularly true where the school aims to restrict or suppress student speech about religion or politics as these subjects receive the greatest protection under the First Amendment. Mahanoy, 141 S. Ct. at 2055 (Alito, J., concurring) (“[T]here is a category of speech that is almost always beyond the regulatory authority of a public school. This is student speech that is not expressly and specifically directed at the school, school administrators, teachers, or fellow students and that addresses matters of public concern, including sensitive subjects like politics, religion, and social relations. Speech on such matters lies at the heart of the First Amendment’s protection[.]”).

First Tier Restrictions are additionally problematic when they prohibit speech that expresses a negative or critical viewpoint. This type of regulation is known as “viewpoint discrimination.” While it is legitimate in certain contexts like the classroom or school-sponsored forums (e.g., school newspapers, school plays, and graduation ceremonies) for school officials to restrict the subject matters that can be discussed by students, school officials are not allowed to prohibit student speech because of dislike or disagreement with the opinion or viewpoint the student is expressing. See Searcey v. Harris, 888 F.2d 1314, 1325 (11th Cir. 1989) (“The prohibition against viewpoint discrimination is firmly embedded in first amendment analysis. . . [W]e will continue to require school officials to make decisions relating to speech which are viewpoint neutral.”) (Cleaned up). Telling students they cannot say or post anything negative or critical about their school or their team is an unconstitutional viewpoint-based restriction because the school has no reciprocal restriction on students saying or posting positive messages about their school or team.

Blanket prohibitions on student’s engaging in or posting negative or critical speech also go too far by punishing or deterring student expression that may either be harmless (e.g., a student blowing off steam about personal grievances related to the school or their team, similar to the student in the Mahanoy case), or speech that is disruptive but of public concern (e.g., a student who posts about race discrimination or sexual harassment occurring on their extracurricular team, or about misconduct by a school official).

Finally, prohibiting student speech because it could be construed as “offensive” or because it might be “objectionable or inflammatory” runs afoul of the First Amendment by creating restrictions that depends on other people’s reaction to seeing, hearing, or reading the speech. This kind of audience-triggered restriction is sometimes referred to as the “heckler’s veto.” However, the Supreme Court ruled in Tinker that schools cannot restrict student speech because of “a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” 393 U.S. at 509.  Moreover, it can be unpredictable what speech will be perceived by others as “offensive” or “inflammatory.” Wanting to avoid a rule violation, some students will therefore choose to say nothing at all (i.e., they will self-censor) rather than risk offending someone or commenting on a controversial topic. This “chilling effect” on student speech can give rise to a First Amendment claim. See Speech First, Inc. v. Cartwright, 32 F.4th 1110 (11th Cir. 2022) (university’s discriminatory-harassment and bias-related-incidents policies both had chilling effects on student speech and could therefore be challenged on First Amendment grounds).

  • Second Tier Restrictions

Second Tier Restrictions do not explicitly ban speech but are so broad or vague, they could readily be interpreted and applied in a manner that punishes student speech that should be protected under Tinker’s requirement of material disruption of school functions. Examples of Second Tier Restrictions include requirements that students always “show respect for” and “display a positive attitude” towards teammates, coaches, opposing players, etc. While such directives may be appropriate when students are actually engaged in the school-related or extra-curricular activity, they become overly broad and “chilling” of otherwise protected speech if applied to students around the clock. This is what occurred in the Mahanoy case where the school district suspended a student from the junior varsity cheerleading team because of her Snapchat comment “Fuck school fuck softball fuck cheer fuck everything,” that she posted on the weekend while hanging out with a friend. The school district argued that the student had violated the team’s rules against disrespecting the school, coaches, and other cheerleaders, and that the post constituted placing negative information regarding cheerleading on the internet.  The Supreme Court held the student’s suspension violated her First Amendment free-speech rights because the school could not show the student’s out-of-school post was likely to materially disrupt the functioning of her cheerleading team. See 141 S. Ct. at 2046.

Other Second Tier Restrictions include directives such as “don’t be rude,” “no sassing,” “be coachable,” “use appropriate language,” and “attitudes will not be permitted.” Vague terms like “rude,” “sassing,” “respectful,” “coachable,” or “attitudes” create uncertainties about what speech is allowed and what speech is prohibited, leading students to self-censor (i.e., their speech is chilled) rather than risk offending the rule. Vague terms also readily lend themselves to discretionary enforcement. A school administrator may punish student speech by deeming it to be “rude” or to reflect impermisible “attitude” – not because the speech is disrupting school functions – but because the school administrator dislikes, disagrees with, or finds the speech irritating. This kind of discretionary enforcement of vague terms invites school officials to engage in viewpoint discrimination which, as discussed above, is almost always a First Amendment violation. See City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 763-64 (1988). (“[W]ithout standards governing the exercise of discretion, a government official may decide who may speak and who may not base upon the content of the speech or viewpoint of the speaker.”).

  • Tinker-Complaint Restrictions

So, what can schools do to establish reasonable conduct guidelines that promote civil and efficiently-functioning school activities, including extra-curriculars and athletics, without unconstitutionally restricting student speech? They can adopt Tinker-Compliant Restrictions. They can also avoid prohibiting speech before it has occurred and instead adopt affirmatively-stated conduct standards that, together with the constitutional principles set forth in Tinker and Mahanoy, will determine when student speech can be punished.

Tinker-Compliant Restrictions appropriately recognize school officials’ limited ability to regulate student speech that occurs off-campus and outside of school-sponsored activities. This starts by clearly defining when and where school and extra-curricular conduct rules apply. For example, the code or agreement may explicitly state that its rules are effective: at school or on school property at any time; off school grounds at any school activity, function or event and while traveling to and from such events; on vehicles provided for students’ transportation by the school system; and at school bus stops. Tinker-Complaint Restrictions also incorporate the standard of material disruption when articulating what speech or expressive conduct, outside of school-related activities, is prohibited. This can be accomplished by inclusion of language such as: “unacceptable student behaviors as defined in these rules are those that interfere with the learning environment and the successful operation of the school day.”

Tinker-Compliant Restrictions will also avoid regulating student speech explicitly based on viewpoint (e.g., prohibiting negative or critical speech, or insisting on only positive speech, about certain topics). Tinker-Complaint Restrictions will further avoid prior restraints on speech (e.g., “never post anything negative about a coach, team member, or opposing team”). Instead, a school may choose to articulate expectations for students in the form of affirmative statements. Click here for an example of a Student Code of Responsibility and a Coaches’ Code of Ethics that articulate the high standards to which a school district holds students and coaches who participate in its athletics, co-curricular activities, and other extracurricular activities. These standards do not impose prior restraints or viewpoint-based restrictions on speech. Should a question later arise about a student’s speech, the affirmatively-stated standards allow for a case-by-case analysis of whether the standards have been breached, and whether punishment of the student’s speech is constitutional under Tinker and Mahanoy (i.e., is there evidence that the speech caused, or was likely to cause, substantial or material disruption). This avoids preemptively chilling or prohibiting student speech.

Finally, Tinker-Compliant Restrictions narrowly tailor off-campus student speech restrictions to including only speech that is:

  • Unlawful (e.g., cyber-stalking, blackmail, making threats of violence or physical harm, inciting imminent unlawful action, defamation, etc.); or
  • Materially disrupts the school’s or extra-curricular program’s functions; or
  • Creates an objectively severe, persistent, or pervasive hostile environment for particular students or school staff based on a protected category (e.g., race, sex, sexual orientation, gender identity, religion, national origin, disability, etc.) that interferes with a student’s ability to participate in the educational program or activity or interferes with an employee’s ability to do their job.

Employing Tinker-Compliant Restrictions and avoiding prior restraint and viewpoint-based restrictions on student speech strike an appropriate balance between a school’s interest in maintaining safe and efficiently-run programs with participating students’ interest in free speech and expression.

Conclusion

If you have questions about whether provisions in your school’s code of conduct or student extracurricular agreements raise First Amendment concerns, please contact the First Amendment Clinic.

Many thanks to the following First Amendment Clinic members:
Data Collection (Fall 2021) – Jack Mahon and Lindsey Floyd
Data Review and Analysis (Spring 2022) – Emma Courtney, Matthew Hashemi, and David Afahame

[1] Materials from schools in the following counties were reviewed: Ben Hill, Bleckley, Bryan, Camden, Charlton, Chattooga, Cherokee, Clarke, Clinch, Colquitt, Elbert, Fayette, Forsyth, Gilmer, Grady, Harris, Jones, Lanier, Laurens, Madison, Pike, Tattnall, and Towns.